Service of order — Original receipt of service not produced — Statement of proprietor of courier service agency cannot be accepted.

[Carter Hydraulic Power P. Ltd v. UOI, 2010 (256)
ELT 394 Cal.]

The appeal filed before the Commissioner of Central Excise
(Appeal II) was barred by limitation, therefore, the appeal was dismissed. The
said order was upheld by the Tribunal. On further appeal before the High Court
the appellant submitted that the copy of order of adjudication from the
Department was not at all delivered, therefore the appeal was not barred by
limitation.

The advocate for the Department filed a photocopy of the
receipt allegedly obtained by the courier service agency at the time of
alleged delivery of the order to an employee of the appellant. It was
submitted that the original was not available. A copy of the statement by the
proprietor of the courier service agency was produced, which stated that he
personally delivered the envelope to one Mr. Das, who was an employee of the
appellant company. The appellant submitted that the copy of order was never
delivered. It was submitted that there was no such employee as ‘Sri Das’ in
the organisation of the appellant.

The Court held that it was not clear whether the
adjudication order was ever delivered to the appellant company. Unfortunately,
the original receipt was not available, therefore it would be too risky to
accept the contention of a proprietor of a private courier service in order to
frustrate a statutory right of a citizen. To avoid all future controversies in
the matter, the order of the Tribunal was set aside and held that the appeal
was presented in time. The Commissioner of Central Excise (Appeal II) to
consider the appeal on merits.